Markle v. Phila.

Opinion by Mb. Justice McCollum, Under the'pleadings and the agreement of the parties the jury were charged with the duty of ascertaining from the evidence submitted to them, the depreciation, if any, in the market value of the plaintiff’s property caused by the widening and change of grade of Roxborough avenue. In the performance of this duty it was proper for them to take into consideration the condition of the property immediately before the work of widening and changing the grade of the street was commenced and the condition of it.immediately after the work was completed. It was competent for the parties to present evidence descriptive of its condition at either time, and evidence explanatory of the effect upon it of the work done. But the condition referred to must be an actual condition discoverable by observation of the' property, not a prospective or possible one depending for a physical existence upon the future action of the municipality. Hence a street laid out but not opened cannot be taken into consideration in assessing the damages caused by the opening or change of grade of another street upon the same property. Negley Avenue, 146 Pa. 456. If Manayunk avenue was opened and graded before Roxborough avenue was widened and the grade of it physically changed, the plaintiff could not, in a proceeding for the assessment of the damages sustained by the opening and grading of the former, have acquired or lost anything by the contemplated or prospective change of the grade of the latter. It logically follows that proceedings for the assessment of damages caused by the opening and grading of Manajurnk avenue are not admissible to affect a claim for damages caused by the widening and physical change of grade of Roxborough avenue. It is proper to state in this connection that there was no offer to prove on the trial of the present case that the damages claimed in it were recovered, or the plaintiff’s right to them adjudicated,in any former proceeding. It is not necessary at this-time to discuss the rights of the plaintiff or the duties of the citjr in respect to paving, sewerage, etc. These are matters which are not pertinent to the issue in the case, and the learned judge properly declined to instruct the jury in relation to them as requested in the city’s fourth point. If such improvements are hereafter made it is probable the plaintiff’s property will be assessed with its proportion of the benefits arising from them. [349] There was no error in the refusal to affirm the city’s third point. It assumed the existence of facts which were not proven and that alone is a sufficient justification of the denial of it. There was no evidence in the case to which the second point was applicable, and for that reason the refusal to affirm it was proper. We need not specifically refer to the remaining specifications, We have examined and considered all of them, including those filed on the 20th of January in pursuance of the permission granted on the argument at bar. Our conclusion is that there is nothing in the rulings or instructions complained of which calls for a reversal of the judgment. The specifications are overruled and the judgment is affirmed.